King Creon: An Example of the Coercive Power
of Socially Accepted Morals
The play Antigone by Sophocles, like many of the same era is a tragedy that is interwoven with notions of love, marriage and morality culminating in a catastrophic finale for the character that fails, often in the eyes of natural justice, to appropriately respond to a moral conundrum. This essay considers the legal theories relating to moral claims and statutory impositions contained in the play Antigone from the rights based view of Jeremy Bentham and the interrelationship with the development of modern succession laws. Many of the concepts contained in Antigone can also be seen in texts such as Wuthering Heights , Crime and Punishment and Middlemarch that also pose moral conundrum’s that involve disentitlement.
This question of disentitlement in a legal sense has been considered recently in the codification of the Uniform Succession Laws. A modern legal example of a sovereign considering foreign motivations, such as morality when issuing commands, can be seen in the Law Reforms review of the codification of succession laws and family provision sections, particularly considering the ‘moral duty’ of the testator.
This essay contends that parallels can be drawn from the actions of Creon in Antigone to the actions of the sovereign and command and sanction theory but also to the deeper considerations dealt with when disentitlement occurs, such as the motivation to commit to an action. The degree to which pain and pleasure occurs from Bentham’s perspective can be seen in the unfettered discretion of the testator being able to dispossess the deserving, such as Creon disentitling Polynice’s moral right to a fair burial and where the sovereigns question of morality was not a consideration of law but of consequences.
Morality in Question
Had Antigone been written in modern times the rights of the monarch might have been less certain and the question of morality might become one of law such as where the testators right is fettered by ‘moral obligations’ and ‘moral duties’ that can now be imposed by the court in accordance with the wishes of the sovereign. Bentham might argue that his sovereign, Creon, was doing as just as he should, issuing commands and applying sanctions to those who fail to ‘pay obedience’ and that natural rights are ‘rhetorical nonsense’. However, Antigone, in her attempt to enforce the moral rights of Polynice’s has created a question of morality that becomes a coercive force for the Creon as a result of public perception.
Bentham’s hedonistic calculus suggests a science to the utilitarian approach of problem solving that can be readily applied within a legal framework. Whether or not the utilitarian approach is favored leads to one of Bentham’s strongest complaints, that the common law, as shapeless heap of odds and ends was made up of incomprehensible language by corrupt and intrinsically biased judges.
Intention, Motivation and Sanctions
Creon is an image of Bentham’s description of a sovereign in its simplest form, a monarch. We could expand Bentham’s view of the sovereign to include those that are in the habit of obeying Creon and call that assemblage his government. These basic elements combine to create a legal system where rules are identifiable and suggest an intention that subjects are to behave in a certain way and are motivated to either do or not do as the sovereign desires with either pain or pleasure as a consequence.
Bentham’s view of consequentialism takes a ‘carrot and stick’ approach, much like King Creon in Antigone. However, As Bentham proposed there is more to Creon’s desire to enforce the carrot and stick approach in how his motives are driving a desire to achieve an outcome. Bentham considered that there were nine motives that could affect a person’s general disposition. These desires to cause either a pain or pleasure stimulation are broken down in to:
Social Motives Dissocial Motives Self-Regarding Motives
Benevolence Malevolence Physical Desire
Desire for Reputation Self-preservation
Desire for Amity Desire for Wealth
Desire for Power
Antigone and Creon appear to be opposing forces in many ways, with Antigone appearing to be benevolent, kind and well meaning, with Creon appearing malevolent, bitter and vengeful. These overarching motivations affect the general disposition of the possessor and make an action to achieve a pain or pleasure outcome more, or less likely.
We can see in Antigone that Creon relies on motivating his subjects to behave a certain way by imposing severe punishments should they breach the law (directions that can be traced back to him as the sovereign). Bentham’s hedonistic perception of human psychology proposes that for a subject to act they must feel pleasure or pain before they will act. In calculating whether a person is likely to act to avoid pain or pleasure Bentham proposed that the effect of the stimulation will be affected by:
5. The chance the stimulation will be repeated; and
6. The chance of the stimulation being followed by the opposite kind.
We can see this in clear effect with Antigone’s choice to disobey Creon’s direction and face certain punishment. It is evident that the disentitlement of Polynice’s causes Antigone pain that is extremely intense, long lasting, absolutely certain, is affecting a close loved one, is likely to be followed by more of the same negative stimulation and is unlikely to be followed by a pleasure sensation. Given these circumstances it is unlikely that any sanction would be an effective deterrent to ensure that Antigone did not disobey Creon’s directions.
This formulaic approach can be useful in determining the circumstances within which an action occurred or did not occur from a judicial perspective in understanding the circumstances of an event. Importantly, in the context of the unfettered rights of the testator, this approach has less effect as statutory requirements have impugned the testators free will to bring about a consequence regardless of motivation.
In A Fragment on Government Bentham discussed the supreme power of the governing political party and how that power could affect the law and the subjects it commanded. Bentham argued that the principle of utility, the overarching goal for the sovereign, was founded in the production of benefit, advantage, good or happiness and the avoidance of mischief, pain, evil or unhappiness for the greater number of the community and that the community’s rights are established and enforced by the sovereign. By establishing the ‘greater happiness principle’ Bentham considered that actions could be considered moral when they promoted utility and immoral when they did not. Bentham universally denied natural laws considering them ‘terrorist language’ and arguing that rights were the result of the law and nothing else.
Bentham supposed that these concepts of pain and pleasure can be derived from four sources, the physical, political, moral and religious. The importance of morality can be seen in Antigone as in Wuthering Heights and other popular texts where a moral conundrum is a central theme that sparks the human interest. The degree to which Creon associates pain and pleasure with his choices can be seen in the imposition of sanctions on Antigone. Bentham calculated the value of pleasure and pain from the view of the community to arrive at a utilitarian conclusion that is just and equitable for the greater good. Creon’s failure to accurately account for the broader perception of his actions in sanctioning Antigone are an example of Bentham’s consequentialism and a moral sanction being imposed upon himself as a product of his own malevolence.
Creon’s direction that Polynice’s is not to be buried can be described as law because it can be traced back to the sovereign and is a communication of the way in which the sovereign wants its subjects to ‘pay obedience’ and evidence that Creon was largely deontological. If Creon had adopted Bentham’s legislative decision making process he could have avoided the pitfalls of his personal bias by adding up the values of the pleasures on one side and the pains on the other side and multiplying each number by the number of people affected with respect to each. This figure, or ‘measurement of pain and pleasure’ quantitatively defines whether an outcome is moral from a utilitarian perspective. Bentham argued that this principle was the best way to achieve the greatest good for the greatest portion of the community and should for the basis of any decision making process of a sovereign.
Dissocial motives such as the malevolence exhibited by King Creon are often fundamental to many of the plays, novels and legal disputes that consider disentitlement, it is notable that best selling author Jane Austin released Pride and Prejudice shortly prior to Bentham’s death that arguably encapsulated many of his theories. The utilitarian perspective suggests that public policy should be directed at promoting the degree to which the community experiences pain and pleasure. Bentham considered that the only way that could be achieved this was by codifying law. Codification would set out clear rules which subjects (and judges) could easily understand and where outcomes could be arrived at by Bentham’s felicific calculus. By imposing a scientific method to arrive at decisions Bentham proposed that corruption and bias could be avoided and the whimsical decision making, such as that displayed by King Creon, that made the common law a shapeless heap of odds and ends would be transformed into a consistent, understandable and reliable approach.
The NSW Law Reform Commission review of succession laws considered a range of factors that can be associated with Antigone and the actions of King Creon and Antigone. In a report to the Attorneys General the standing committee recommended that a category of person be included as being able to make application for a family provision order if it could be seen that there was a ‘moral obligation’ for the deceased to provide for them, that typically involved those who were either directly related through blood, marriage or were wholly or partially dependent upon the deceased. The report considers that this moral obligation could theoretically extend to new category of applicant that would allow those ‘deserving’ persons to apply for a family provision orders even if they could not establish that they were dependent upon the deceased.
From Bentham’s utilitarian perspective the family provision provides a mechanism where the courts can reduce the possible burden on the state where an entitled person has been disentitled. This comes at the expense of the free will of the testator to do with their possessions as they see fit, and points to an increasing propensity to fetter the individual’s discretion by the sovereign in pursuit of a utilitarian perspective. The tightening of the law, through codification of a hotchpotch of common law into a more concise family provision clause is a clear indication of the gradual change towards positive law that would likely be agreeable to Bentham, however anger Creon.
Such changes towards positive law remove the absolute power of a ruling monarch and reduce the flexibility with which a sovereign can arbitrarily create and adapt the law to suit their whimsical motives.
The effect of positivism
Positive law becomes a coercive force for the sovereign because its visibility means that it is assessed by the community as a whole in whether it is socially acceptable. We can see the effect of these coercive powers of actions that are not perceived as socially acceptable in the changing stance of Creon when he belatedly lifts his sanctions on Antigone. The voice of Tiresias, a prophet who cannot see and yet feels the will of the gods might arguably be the voice of moral duty using the carrot and stick approach to encourage Creon to adopt a more socially acceptable approach or risk suffering the significant pain of losing his own son.
Creon’s changing stance is a result of him arriving at an unconscious result of a felicific calculation and determining that the potential pain his actions might cause himself outweigh his malevolent motivation to inflict pain on others. Specifically, Tiresias argues that these considerations are not only to the individuals but that all of Greece will despise him, demonstrating the ultimate coercive power of public perception. The codification of family provision laws that remove a testators unfettered discretion demonstrate a modern example of utilitarianism. Plays like Antigone and novels like Pride and Prejudice or Wuthering Heights involve competing motives to create social intrigue that often involve disentitlement of some degree, it is relevant therefore to consider that the evolution of modern posited law has develop on the broader level because the rights of the disentitled now outweigh the discretion decision maker.
The play Antigone by Sophocles is an apt illustration of Bentham’s felicific calculus at work on a multitude of levels including the contributory effects of human intention, motivation and disposition causing certain actions in response to a perception of a pain or pleasure stimulus. What is equally evident is that this contributory effect is not purely confined to the individual but plays out in the expansion of positive law as a result of evolving socially accepted norms. We can see this through Creon’s actions which were inherently deontological. The fallacies of a deontological approach were raised by Tiresias, highlighting the coercive power of a community’s perception of morality on the actions of a sovereign.
This interplay, in jurisprudential terms, between assessing the actions of the individual using a theory like felicific calculus and what is a socially accepted norm (such as a testators moral duty) is an important consideration when applying the law to a scenario to arrive a decisions. Bentham might argue that socially accepted norms evolve a deontological approach tends to give way to utilitarianism as we can see in the codification of family provision legislation.
At the time of Bentham’s writings disentitlement was a significant social issue. Novelists took advantage of this social perception in literary texts such as those by Jane Austin, Pride and Prejudice (1831) and Emily Bronte’s Wuthering Heights (1847). It is interesting to consider in light of Antigone (Sophocles circa 400BC) that disentitlement has remained a central social theme for a significant period. As we can see however from Creon’s reaction to Tiresias and Bentham’s view of morality (from a utilitarian perspective), the Law Reforms consideration of a ‘moral duty’ owed by the deceased to those who were or are dependent on them is a combination of the two to codify a rule that potentially reduces the burden on the state at the expense of the rights of the testator as a result of an evolution of what is publically accepted.
The apparent modern day preference for positive law and a utilitarian philosophy as opposed to a deontological approach appears to be reflecting the coercive power of what is readily accepted by society at large.
1. Austen, Jane, Pride & Prejudice (Gibbs Smith, 2011)
2. Bentham, Jeremy, H. L. A Hart and Jeremy Bentham, Of Laws In General (University of London, Athlone Press, 1970)
3. Bryant, Clifton D. and Jeffrey P. Rosenfeld, “The Legacy Of Aging: Inheritance And Disinheritance In Social Perspective.” (1981) 10 Contemporary Sociology
4. Brontë, Emily, Wuthering Heights (Modern Library, 1994)
5. Conklin, William, “The Utilitarian Theory Of Equality Before The Law”
6. Corry, B. A. and T. L. S. Sprigge, “The Collected Works Of Jeremy Bentham. Vol. 1: 1752-6.” (1970) 37 Economica
7. Dostoyevsky, Fyodor and Constance Garnett, Crime And Punishment (Christian Classics Ethereal Library)
8. Eliot, George and David Carroll, Middlemarch (Oxford University Press, 1997)
9. Frey, R. G., “The Utilitarian Response: The Contemporary Viability Of Utilitarian Political Philosophy. Lincoln Allison” (1992) 102 Ethics
10. Garlan, Edwin N., Jeremy Bentham and Charles Warren Everett, “The Limits Of Jurisprudence Defined. Being Part Two Of An Introduction To The Principles Of Morals And Legislation” (1945) 42 The Journal of Philosophy
11. George, Robert P., “The Problem Of Public Morals Legislation” (1994) 107 Harvard Law Review
12. Hillinger, Claude, “Jeremy Bentham, Philosopher And Social Engineer” (1932) 129 Nature
13. NSW Law Reform Commission, Report 110 Uniform Succession Laws: family provision (2004).
14. Queensland Law Reform Commission, Consolidated Report to the Standing Committee of Attorneys General on the Law of Wills, Miscellaneous Paper No 29 (1997).
15. Rayment, Charles S., “Legal Fictions Regarding Disinheritance” (1953) 46 The Classical Weekly
16. Rooney, Miriam Theresa, “The Limits Of Jurisprudence Defined” (1947) 21 New Scholasticism
17. ROSEN, FREDERICK, “JEREMY BENTHAM: RECENT INTERPRETATIONS” (2006) 30 Political Studies
18. Rosenfeld, Jeffrey P., “Disinheritance And Will Contents” (1982) 5 Marriage & Family Review
19. Singer v Berghouse (1994) 181 CLR 201.
20. Silver, Charles, “An Introduction To The Principles Of Morals And Legislation . Jeremy Bentham , J. H. Burns , H. L. A. Hart Essays On Bentham: Jurisprudence And Political Theory . H. L. A. Hart” (1984) 94 Ethics
21. Sophocles, ‘Antigone’ in The Three Theban Plays (Robert Fagles trans, Penguin, 1982) 40-110
22. Succession Act 2006 (QLD), s41.
23. Young, A., “Legislation, Morals, And Ethics” (1992) 304 BMJ
24. It’s Not Just Consequences: Jeremy Bentham’s Philosophy Of Action (2016) Academia.edu